NY State Senate Districts (image via Google Maps)
Following the 2020 Census, New York will kick off the decennial redrawing of its state legislative and congressional districts to ensure equitable representation based on population. But the next redistricting process is untested so far, having been approved after the 2010 Census when New York saw a severe undercount, contributing to the loss of one congressional seat, followed by a redistricting that many observers and elected officials criticized for creating overly complicated state legislative districts on partisan lines.
Looking ahead to the upcoming process, experts are hopeful, though uncertain, that the new redistricting method -- approved by voters via 2014 ballot referendum -- will lead to cleaner, more representative districts that improve the state’s democratic process once they take effect in 2022.
New York currently has 150 Assembly districts, 63 Senate districts, and 27 for the U.S. House of Representatives, all of which could change with the next redistricting when a new advisory commission of mostly legislative appointees will recommend the new boundaries for districts. That commission is meant to reduce political influence, though its proposed maps will not be binding.
Democrats now control the entire state Legislature, though they will have to keep control, especially of the Senate, through the 2020 elections. Republicans held the state Senate when the last round of redistricting took place, with a split Legislature in part leading to heavily gerrymandered district lines. At least in theory, legislative leaders will be less able, and therefore likely less inclined, to manipulate the next redistricting process, which offers a degree of parity and safeguards against partisan politics.
The census is the first big next step, and with the subsequent redistricting it determines representation of a state’s population in Congress and, for New York, the state Senate and Assembly. Besides the threat of billions in lost federal funding, an inaccurate census count can set the stage for a skewed drawing of legislative and congressional districts. New York has seen a net out-migration of more than a million residents since 2010 and stands to lose at least one seat in Congress, if not two, if the state’s population is not adequately counted.
Following the last census, in 2010, the state’s redistricting process came under heavy scrutiny for lacking transparency and for creating state Senate districts that seemed designed to advantage Republicans and upstate and suburban districts, diluting the power of New York City residents who tend to lean Democratic. The process also strengthened Democrats’ control over the Assembly, though that chamber has traditionally been dominated by the party.
Governor Andrew Cuomo approved of the redistricting plan, which was put forward by the state’s Legislative Task Force on Demographic Research and Reapportionment (LATFOR) after 23 hearings across the state. At the last LATFOR hearing, one member, then-state Senator Martin Dilan, a Democrat, said he had considered boycotting the meeting because “the entire process has been a farce, a sham, has been a waste of money, and I believe that we have not listened to the citizens of the state of New York, and the plan that's being presented today to the Legislature is something that's putting the cart before the horse.” The redistricting plan, he said, was presented to the public and to the Legislature without LATFOR voting on it first.
But as the Legislature adopted the redistricting plan, it moved forward with an amendment to the state constitution, approved through voter referendum, which mandated the creation of a new “independent redistricting commission” to redraw district lines.
In 2021, that commission will be created for the first time, composed of ten members -- two each appointed by the Assembly Speaker, Senate majority leader, and minority leaders in both houses; and two chosen by a majority of those eight appointed members. The legislation set restrictions on who can be members, prohibiting anyone who has been in the previous three years a state legislator, congressional representative, statewide elected official, legislative or state employee, lobbyist, or political party chair. It also restricts the spouses of legislators, representatives, and statewide officials from serving. The commission will have two co-executive directors, representing the Democratic and Republican parties. LATFOR, chaired by Assemblymember Marcos Crespo, a Bronx Democrat, is meant to provide assistance to the commission. Crespo’s office did not respond to repeated requests for comment for this story.
The new commission will be guided by clearer safeguards and criteria than its predecessor as it spends months holding public hearings across the state. The authorizing legislation requires the commission to hold at least one hearing in the cities of Albany, Buffalo, Syracuse, Rochester, and White Plains, and in counties including the Bronx, Brooklyn, Queens, Staten Island, Manhattan, Nassau, and Suffolk.
The law mandates that districts should not be drawn in a way that could lead to “the denial or abridgement of racial or language minority voting rights.” It requires the commission to create equally populated districts as far as possible and to provide explanations in case of deviations.
The law also protects against the party in power from exploiting its position. If the leaders of the two legislative chambers represent different parties, the newly drawn maps recommended by the commission must be approved by a majority vote of each house. But, if both chambers are controlled by the same party, approval would require a two-thirds majority vote.
“What we have this time around is the largest amount of uncertainty that we’ve ever had in redistricting in the last 40 years,” said Esmeralda Simmons, founder and executive director of the Center for Law and Social Justice, at Medgar Evers College, CUNY. “There’s a big question mark about what exactly is going to happen and how in this precedent-setting year, how this commission and the state Legislature will actually behave under these circumstances. It’s a test of whether or not elected officials, when their self interest collides with democracy, will choose democracy.”
Experts agree that an effective redistricting can only take place if the state carries out a thorough census effort and counts each and every resident of New York, and that the process is as free of politics as possible.
The 2020 Census is expected to be particularly challenging for several reasons -- the federal government is underfunding the Census Bureau; the count will be carried out largely through digital methodology for the first time; the Trump administration is attempting to add a citizenship question (which is being challenged in court) amid already rising concerns among immigrant communities, particularly undocumented immigrants, that they could fall under the federal government’s scrutiny; and the state has only allocated $20 million for community outreach though advocates called for twice that amount.
“Right now, the focus has got to be on the census because a bad census is going to result in a lack of fair representation,” said Jeff Wice, Fellow at the SUNY Rockefeller Institute of Government, who is a veteran of four cycles of legislative redistricting in New York City and State. “The state commission won’t be created until 2021 so it is not going to be a frontburner issue now, but people do need to learn about the process.”
As Wice and the others noted, an inadequate census would raise questions about the equitable reapportionment of districts. Undercounts, particularly of hard-to-count communities, can lead to redrawing district boundaries in ways that would create overpopulated districts, effectively watering down their representation, while over-representing others.
“Given there are communities that tend to not appear on the population count combined with the fact that there are districts that are disappearing, is potentially worrisome in terms of the reality of representation on the congressional level,” said Yurij Rudensky, counsel with the Democracy Program at the Brennan Center for Justice, “particularly for parts of the city like Queens and Brooklyn and the Bronx where lower-income communities, communities of color tend to live.”
There also remain several other open questions about the process, including how independent the redistricting commission will really be and whether the districts it draws will ultimately be approved by the Legislature and Governor. In the last round of redistricting, the Legislature deadlocked on congressional maps and a judicially appointed special master ended up drawing the maps that were later adopted.
“Maps that are drawn by courts perform well from a partisan fairness standpoint,” said Rudensky, “and of course courts are also sensitive to racial implications and have for a long time considered Voting Rights Act challenges.”
The independent commission’s recommendations will not be binding and the Legislature can, after rejecting the commission’s plans twice, adopt its own plan. “There’s no guarantee that this is how things will play out but it is possible as the proposal is written right now,” Rudensky said. “That is a reality, that is a shortcoming. It doesn’t mean it will happen, it doesn’t even mean that it’s likely because I think the way that it was designed, it will make it harder. Because the public has this increased role, it would look bad at the very least. That’s not to say that that will stop any sort of funny business.”
The 2021 redistricting process will be the first to be carried out without certain protections of the Voting Rights Act, which were struck down by the United States Supreme Court in 2013. Those protections required certain states and counties -- including the Bronx, Brooklyn and Manhattan -- to get approval from the federal Department of Justice to make changes to election laws, including the drawing of districts. Without those protections, “the only way to challenge something that hurts racial minority voters would be to go to court after the fact, not stop it before it goes into effect, and that’s a real major difference,” Simmons said, “the fact that they don’t have the hammer of the Justice Department hanging over their heads to reject racially discriminatory voting lines.”
Simmons is eagerly awaiting the Supreme Court’s decision, expected this summer, in a separate case that could bring an end to extreme partisan gerrymandering, which she is hoping will strengthen the state redistricting process as well.
The state Legislature passed a law in 2010 requiring that prison populations be counted based on inmates’ previous residence, but the constitutional amendment creating the redistricting commission does not address the issue. Prison populations can especially bolster upstate area population counts if prisoners are counted based on their prison location.
“The commissioners could question whether the state is still required to reallocate prisoners because the constitutional amendment is silent on that,” Wice said. “It is an open question because they could argue that the constitutional amendment preempts a chapter law that was enacted prior to the constitutional amendment...That could be a major debate.”
Nonetheless, there’s hope that the state can set a better standard with the new process. “I believe that elected officials can redistrict responsibly if they have a fair, transparent, objective process, and that’s very doable,” Wice said. “You don’t want to have plans…that are enacted through backroom machinations….[The commission’s] got to do things more in the open that will lend itself to more credibility and trust.”
Simmons admits that she has a “deep-seated fear” that the Legislature could exploit the loophole in the law that allows it to draw districts and reject the commission’s proposal. But, she said, “I do have hope that this process will be real and not just subterfuge, wasting taxpayer dollars by giving some people some busy work while the Legislature draws its own districts and simply rejects out of hand anything suggested by the commission.”
Rudensky said the public eye will keep the Legislature honest. “There’s gonna be a lot of attention on it, focus on it and hopefully that will help make sure that the reform is a success,” he said.
Note - this article has been updated to clarify that congressional maps were drawn by a court-appointed special master in only the previous round of redistricting, not the previous two rounds.